On the 16th November 2016, we were instructed by a firm of solicitors to represent a landlord in what should have been a very simple case where a tenant had made an application to suspend a warrant of possession. The warrant was due to be executed on the 17th November 2016 and the warrant of possession arose from an expired Section 21 notice.
The landlords were private landlords and they had instructed a letting agent to manage this property and deal with the usual issues regarding collection of rent and notices seeking possession. This is a case where the tenancy started in December 2015 after the changes from the Deregulation Act came into force. Many of you should know by now (and if you don’t then you need to know) that for any tenancy starting after the 1st October 2015, landlords and letting agents must provide tenants with an energy performance certificate, gas safety certificate and the government publication, “How to rent: The checklist for renting in England”.
In this case, the letting agents had provided the gas safety certificate and the energy performance certificate but had not provided the how to rent checklist. This of course would play a pertinent part in the case later.
The tenancy was entered into on the 7th December 2015 and on the 8th April 2016, the letting agents served (correctly) a Section 21 notice giving the tenants two months to leave the property. The tenants acknowledged the Section 21 notice by telephone seven days before it was due to expire and told the lettings agent that they were looking for another property. However, the tenants did not leave the property at the expiry date and the letting agents instructed solicitors to commence possession proceedings under the accelerated procedure. Now we cannot say for sure what the solicitors advised the letting agents regarding compliance with the new regulations but a claim form was prepared and issued at the County Court at Burnley under the accelerated procedure.
The claim form was posted to the Defendants on the 31st August 2016 and it was deemed served on the 2nd September 2016. The tenants did not respond to the claim form and on the 16th September 2016, the solicitors requested the court to make a possession order which it did so on the 26th September 2016.
The tenants still did not leave the property and on the 14th October 2016, the solicitors requested a warrant of possession. The warrant was issued on the 19th October 2016 and an appointment was made for bailiffs to attend the property on the 17th November 2016.
The tenants sought advice from a family friend and on the 10th November 2016, the tenants made an application to suspend the warrant of possession on the basis that firstly, the how to rent checklist had not been provided at the start of the tenancy, and secondly, that the right to rent checks had not been completed either.
We were instructed by the solicitors on the 15th November 2016 to attend the hearing and at that hearing, our Philip Nam met with the letting agent and discussed the claim with them and also discussed whether they had complied with the new rules for tenancies starting after the 1st October 2015. We were shocked to hear that the letting agent had instructed me that the changes did not come into force until the 1st February 2016! This of course is partly correct in that the right to rent checks in England (apart from West Midlands) came into force on this day. However, the other requirements regarding service of the how to rent ‘booklet’ came into force for any tenancy starting after the 1st October 2015. As a result, we advised the letting agent that it was likely that the court would be ordering that the Section 21 notice was invalid and that the possession order should be dismissed.
Luckily (in a stay of execution), at the hearing the Judge confirmed that he wasn’t sure of this new law and therefore he adjourned the matter for 14 days to allow the parties to prepare submissions on the effects on the Deregulation Act. Obviously, if the Judge was fully aware of this new law, then he would of immediately awarded the application, dismissed the claim for possession and made an order that the Section 21 notice was invalid.
It is therefore very important for all landlords and letting agents to ensure they are fully compliant with the new regulations for tenancies starting after the 1st October 2015 and to instruct someone who attends court on a regular basis on landlord and tenant matters to ensure that you are fully protected in terms of all the relevant legislation arising from this issue and others.
Therefore, if you require any assistance as a Landlord or Letting agent, please telephone us on 0151 230 8931 or visit www.whitecollarlegalandadmin.com